Chief Justice Speech - February 26, 2007

STATE OF THE JUDICIARY ADDRESSDELIVERED TO A JOINT SESSION OF THE LEGISLATURESACRAMENTO, CALIFORNIAFEBRUARY 26, 2007CHIEF JUSTICE RONALD M. GEORGE

Good afternoon. It is a great pleasure to be here to deliver my twelfth annual State of the Judiciary Address to this joint session of the California Legislature. I want to thank your leadership, Senate President Pro tem Don Perata and Speaker of the Assembly Fabian Nuñez, as well as Republican leaders Senator Dick Ackerman and Assembly Member Mike Villines, for the invitation to address you today. There are many new faces in the Legislature this year, and I join in welcoming you and look forward to working with you and your colleagues over the coming year.

With me here today are my six colleagues on the California Supreme Court, Associate Justices Joyce Kennard, Marvin Baxter, Kathryn Mickle Werdegar, Ming Chin, Carlos Moreno, and Carol Corrigan. Also in attendance are members of the Judicial Council, which I chair and which is the constitutionally created body charged with statewide administration of the judicial branch; the Administrative Director of the Courts Bill Vickrey, his Chief Deputy Ron Overholt, and several members of their staff; and members of the Bench-Bar Coalition. The members of the Coalition are important partners in our legislative efforts, and tomorrow you will have an opportunity to meet with them to hear more about the concerns, needs, and achievements of the judicial branch on both the statewide and local level.

Over the past decade, the judicial branch of our state has become stronger and more effective — not only because of our own efforts to improve our service to the public, but also because of the great assistance provided by the other two branches of government.

Those of you who have served in prior sessions of the Legislature, and other members who have preceded you, have recognized that an impartial court system, capable of providing fair and accessible justice and adherence to the rule of law, is a cornerstone of our democracy. Each of the three branches — although co-equal and independent — is interdependent and must rely upon the other two in order to fulfill its role in the balanced system of government that our Founders, national and state, so wisely established for us.

We in the judicial branch — and, most importantly, the public we all serve — have benefited greatly from the reforms we have jointly instituted. First and foremost is the shift in funding responsibility for the courts from the counties to the state, enabling us to institute a host of other reforms and services greatly improving the lives of all Californians. Among them are jury reform, self-help centers for unrepresented litigants, and complex litigation courts.

When I stood before you last year, I described three major problems affecting the ability of our branch of state government to do its job. You and the Governor acted affirmatively on all three, and we are most appreciative. You created 50 desperately needed new judicial positions; you increased the compensation for judges — enhancing the state’s ability to attract and retain well qualified and diverse individuals to a career on the bench; and you enacted legislation facilitating the transfer of court facilities from county to state ownership. This year, we are asking for your continued assistance in a few key areas.

First, additional judicial positions. Since the late 1980’s, the number of new judgeships created in California has lagged far behind the growth in population across our state — especially in the fast growing Central Valley and Inland Empire areas. Changes in the structure of the judicial branch, including our unification of 220 trial courts into one level — 58 superior courts, one in each county — have allowed our system to better utilize the positions we have. But the gap between expanding caseloads and the number of judges available to handle them has continued to grow, adversely affecting the administration of justice.

Courts have been forced to shut down civil courtrooms — in some cases countywide — because criminal cases facing dismissal have priority under the law and there was an insufficient number of judges to handle all the cases. In Riverside, one of the most affected counties because of an enormous growth in population, for two years in a row all civil courtrooms were closed for several weeks. Civil litigants saw the resolution of their family law matters, contract disputes, housing, probate, and personal injury claims deferred and delayed. One older gentleman wrote to tell us that for two years in a row, the Riverside court has had to take his civil case off calendar, and that he worried he would not live long enough to see his dispute resolved.

Last session, we proposed to you and the Governor a plan to create 150 new judgeships to alleviate the most acute needs in the state. The plan was based on a systematic and thorough evaluation of caseload and population growth, and a study by the National Center for State Courts confirming that at least 350 new judicial positions were justified. To meet the greatest needs, we asked you to create the 150 most needed new judgeships — 50 in each of three successive years. Thank you for making the first 50 positions a reality.

Each of the 50 judicial positions we are requesting this year is essential if the courts in the affected parts of the state are to meet the fundamental needs of the public.

The reason is basic. Our shared focus on providing meaningful access to justice — and on employing various means to enable the court system to better meet the needs of our diverse population — all are aimed at the same goal: ensuring that individual litigants can have their matters fairly adjudicated. We can devise all sorts of innovative procedures to improve the way courts handle the disputes that litigants bring to the courts, but these measures will be meaningless if there is no judge to decide the cases.

We also are seeking legislation to convert some existing subordinate judicial officer positions into regular judicial positions. Many of these court commissioner positions were created locally to help take up the slack when no new judgeships were being created. Many of those who serve as subordinate judicial officers perform excellent work. But the process for selecting them does not include any vetting by the Governor or the State Bar’s Judicial Nominees Evaluation Commission, and unlike judges they are not subject to a vote by the people. Because of the insufficient number of judges, many of these subordinate judicial officers are presiding over major cases — even death penalty trials and multi-million dollar litigation. At a relatively small cost, we can convert some of these positions into regular judicial positions when they become vacant and where they are needed, and appoint judges in the regular manner to fill them.

We, along with you and the Governor, are committed to ensuring the diversity of our bench to better reflect the rich diversity of the people of our state. As required in the legislation creating the first 50 new judicial positions, we have gathered data about the gender, racial, and ethnic background of all sitting judges, and will shortly release our report. The Governor is assisting in gathering similar data relating to persons applying for appointment to the bench and those referred to the State Bar by him for evaluation. We must make sure that individuals with every kind of background and experience can seek a judicial position without sacrificing his or her financial security.

This leads me to the second of the three areas I want to revisit — judicial compensation. Recently, the Chief Justice of the United States, John Roberts, made headlines when, in his annual report on the state of the federal judiciary, he stressed the corrosive impact of stagnant judicial salaries on the ability of the federal courts to attract and retain the most qualified judges from a broad range of law practices and backgrounds.

In California, however, thanks to you, we have seen definite progress in this area. Last year you provided an 8.5% increase in judicial salaries. But the other side of the coin of judicial compensation is the judicial retirement system.

One of the major problems affecting the ability to attract the most qualified and diverse pool of applicants for appointment to the bench is the retirement program (JRS II) available to judges appointed after 1994. This is one of the most restrictive programs in the public sector. It generally requires judges to serve for 20 years and reach age 65 in order to receive a defined benefit. With less service than that, the individual essentially receives back only his or her contributions, and part of the state’s contribution, in a lump sum. Our modest proposal still would require 10 years of service and reaching the age of 63 to be eligible for a defined benefit.

We want to attract and retain individuals from the public and private sectors at the height of their legal careers and take advantage of their skills for a sustained period. None of us expect to become wealthy entering public service, but we are losing too many excellent judicial candidates. And we also are seeing many judges leave the bench early to provide for their families. It does not make sense for the state to pay retirement benefits to a judge and concurrently have to pay the salary of a replacement judge. The state may end up paying more for less experience. This is an urgent matter affecting the public interest.

Legislators have told me that many qualified individuals in their districts — lawyers practicing in the private sector as well as those employed in government law offices — have cited the inadequacies of the retirement system as a reason for not seeking appointment to a judicial position. At a recent liaison meeting I held with the California District Attorneys Association, several elected DA’s stated that highly qualified prosecutors and defense attorneys in their counties were interested in judicial positions but had told them they could not afford to apply because of the adverse effect on their public retirement benefits.

Additionally, both salaries and retirement systems have a clear impact on our ability to attract a racially and ethnically diverse group of candidates. There are too many other more lucrative options in the private and even the public sector awaiting the best candidates — options many feel compelled to take because of their other obligations.

The third area in which I would like to follow up on last year’s efforts is the transfer of ownership and maintenance responsibility for California’s courthouse facilities from the counties to the state. Five years ago the Legislature adopted a plan for the transfer of courthouses to state control. Last year you enacted a measure, Senate Bill 10, that will facilitate and expedite this process.

With funding of the court system now a state responsibility, and with the many competing demands upon county government, the lack of local interest and ability to allocate scarce resources to courthouses is understandable. But many decades of neglect have left the infrastructure of the court system in a very precarious condition.

In courthouse after courthouse, security is inadequate. Pursuant to your mandate, we have adopted minimum security standards. We are working closely and cooperatively with the sheriffs to create a proposal to bring each court up to those standards.

Many of California’s courts occupy buildings that are seismically vulnerable or are plagued with dangerous fire or mold conditions. Many facilities are incapable of meeting the requirements of the Americans with Disabilities Act. In 40% of our court facilities, shackled prisoners are brought to criminal courtrooms through crowded public hallways.

The deficiencies in our court facilities threaten the thousands of Californians who each day enter our courthouses to pay a traffic ticket, obtain an official document, seek dissolution of a marriage, determine child custody, adjudicate other legal claims, testify as a witness, or serve as a juror. They also threaten the persons who work in the courts — judges, staff, and lawyers.

The facilities legislation you adopted last year already has produced significant advances in court transfers to the state. We are actively negotiating with all 58 counties, and hope to complete the transfer to the state of up to 100 of California’s 451 courthouse facilities by this summer with the goal of transferring an additional 200 facilities by July 2008. We also have begun to explore with your leadership a variety of approaches, such as lease-backs and multiple-use facilities, involving the participation of the private sector. We request your continued assistance in making progress toward our goal of providing safe and secure court facilities for all Californians.

Governor Schwarzenegger has proposed a $2 billion bond issue for the construction and renovation of courthouses as part of this year’s Strategic Growth Plan. Last year, courthouses were not included in the bond proposal that went to the voters. We hope this year will be different. We continue to push for this investment in justice because the alternative of life-endangering court facilities is unacceptable.

These measures will help provide better physical access to safe courts. And having a high quality bench helps ensure fair and objective treatment for all. But meaningful access for all Californians requires much more. You and the Governor have provided additional funding to improve equal access. I thank you — those funds already are at work, offering assistance to litigants unable to afford counsel on their own. The Judicial Council has shown its commitment by allocating an additional $3.7 million to support self-help services. These programs are expanding, and our goal is to install them in every court.

These and other measures are critical. The number of self-represented litigants continues to increase, and their needs will, in my opinion, pose the single most challenging issue for the courts in the coming decade. In some counties, litigants appear without an attorney in 85 to 90% of family law and landlord/tenant matters. The costs to the judicial system and to the public are high — impairing the ability of self-represented litigants to effectively vindicate their rights, undermining the ability of courts to efficiently process heavy caseloads, and eroding the public’s confidence in our judicial system.

Self-help services provided at courthouses and other locations and on the judicial branch’s website, augmented by legal aid and pro bono contributions by lawyers, are making a difference. But these activities are far from sufficient to meet the urgent needs of unrepresented litigants.

According to an article that appeared last month in the Los Angeles Times, thousands of self-represented Californians are awaiting a “nasty surprise” — “Many of them are not quite as divorced as they think they are” and some “are even accidental bigamists.”

Moreover, some cases simply are too complex for self-representation, or for particular litigants who are unable to navigate the legal process because of language or educational difficulties.

At our request, the Governor has proposed $5 million in this year’s budget for a pilot program to make legal representation available in a limited number of civil cases when the judge determines critical rights and issues are at stake. These include child custody matters, domestic violence, probate, housing, and other matters with outcomes that affect basic rights. Three counties — one large, one medium, and one small — will be selected for the initial study. I can tell you that counties from every part of the state are vying to take part in this program. I strongly urge you to take the first steps to answer these pressing needs.

Last year, because of funding concerns, resources were withheld from a bill to provide interpreter services in critical civil proceedings. There can be no access to justice for one who cannot understand the proceedings. Information and forms increasingly are available in Spanish and other languages in courthouses and on the Judicial Council’s award-winning self-help website, but the need for interpreter services in the courtroom remains acute.

Meeting these needs will not be easy. There are numerous challenges, including the inadequate supply of qualified and certified court interpreters that we are working to supplement. But we must cope with the reality that every year more than 100 languages are spoken in California’s courts, sometimes interpreted by the young children of non-English-speaking parties. We are developing methods that will allow us to make incremental progress in answering this urgent need. We look forward to working with you to start implementing programs that will make a difference for so many persons in understanding and being understood when they come to court.

No one approach to ensuring justice for all will answer every need. We also are expanding the JusticeCorps. This program trains college students to work as assistants in court-based self-help legal access centers.

These students provide a unique source of assistance. Last year, the second class of JusticeCorps members in Los Angeles spoke 24 languages and helped make it possible for self-help centers there to serve more than 122,000 persons. The response from the persons they help and from the courts in which JusticeCorps is providing assistance has been uniformly enthusiastic.

We continue to press forward with a number of other initiatives to better serve the public. I appointed a Blue Ribbon Commission on Foster Care, led by my colleague Supreme Court Justice Carlos Moreno, with members drawn from all three branches of government. They are working on recommendations to be submitted to the Judicial Council on methods by which the courts and others with responsibility for children in foster care can improve the lives of these vulnerable members of society. The commission’s efforts are being coordinated with the requirements imposed by your passage of the Child Welfare Leadership and Performance Act of 2006.

The Governor’s budget also contains $17.4 million to implement significant new court mandates under the Omnibus Conservatorship and Guardian Reform Act of 2006 to improve services in this area of the law in order to better protect these individuals from improper restrictions on their personal and property rights.

The California Supreme Court continues its outreach efforts to educate the public, and especially students, about the court system through oral argument sessions held in non-traditional locations. My colleagues and I have held these special sessions in recent years in Fresno, Redding, San Diego, San Jose, Santa Ana, and Santa Barbara, receiving uniformly enthusiastic responses. Some of our Courts of Appeal and trial courts are engaging in similar efforts.

Of immediate interest to you, the California Supreme Court recently granted review or ordered supplemental briefing in 7 cases that will allow us to provide guidance to the lower courts following the United States Supreme Court’s recent opinion finding that California’s sentencing scheme does not meet certain constitutional criteria. Appellate decisions will be forthcoming, affecting sentences already imposed, and we look forward to your providing guidance for future sentencing decisions by the courts through the enactment of legislation.

Preparing to address you is difficult, because it requires that I select among the many exciting developments occurring in the judicial branch. Each time I attend the Conference of Chief Justices, which I headed a couple years ago, the accomplishments and cordial relationships existing among the three branches of government in California are the focus of interest — and even envy — from my peers in other states.

The challenges that lie ahead include not only sufficient resources, but also ensuring that our judicial branch remains strong and impartial. Last fall, I was asked by former Justice Sandra Day O’Connor and Justice Stephen Breyer to participate in a conference on the independence of the judiciary that they convened in Washington, D.C. Several other justices of the United States Supreme Court and of state Supreme Courts were in attendance as we discussed the increasing threats to this fundamental principle, arising from a variety of sources nationwide.

In this context, I want to stress the function served by an independent and impartial judiciary. That phrase does not describe judges who are unaccountable or free to decide cases based upon their personal preferences or political or social philosophy. To the contrary, it signifies judges who are bound to render decisions founded upon the law and the facts before them, independent of improper pressures and influences — judges whose allegiance is to the law, and not to partisan or special interests. We should expect nothing less of those who serve on the bench.

Yet, increasingly, voices have been heard arguing that judges should follow the preferences of the majority, deciding cases based on popular opinion and not upon the constitutions and laws that govern our state and our nation.

In South Dakota last fall, an initiative measure placed on the ballot would have abolished the immunity of judges from lawsuits, making them personally subject to monetary damages and even criminally liable based upon their judicial decisions — even those upheld in the appeals process. It failed overwhelmingly, but only after every legislator and other elected official and every major newspaper urged a “no” vote and explained the consequences of a subservient bench. Unfortunately, the proponents of this measure are Californians who want to try it out in a few small states before bringing it to their home state.

Courts and judges are not, and should not be, immune from criticism. But the role they play is very different from the one with which you as legislators are entrusted. You are elected in large part based upon the positions you hold on particular issues. In contrast, judges should be selected based upon their ability to set aside their personal beliefs and upon their commitment to the rule of law. We do not want them to read the latest opinion polls before making their decisions. They are expected to consult only the constitution, the law, and precedent.

Recent studies of the public’s view of California’s courts have been very positive. A survey of public trust and confidence in our judicial system conducted in 2005 revealed that 67% of the California public has an overall favorable opinion of the courts, compared to less than 50% in 1992. The reforms and improvements that we have been undertaking, many with your express support, are making a difference.

The state of the judiciary is certainly much improved over what it was when I delivered my first address to the Legislature in 1996. That progress is due in large part to the joint efforts of all three branches of government. Our state government at every level has shown that it values a strong, fair, and accessible judicial branch, accountable for the funds you appropriate, responsive to the needs of our diverse population, and eager to ensure the fair and accessible administration of justice for all Californians.

I and many others in our branch look forward to meeting with you over the coming year to discuss the court system, and to working with you to make it even better. It is a continuing privilege for me to lead the enormously talented and dedicated judges and staff who are the judicial branch. Thank you again for inviting me to speak with you today. And please join us now at a reception in the Capitol Rotunda.